1704030 (Refugee)

1704030 (Refugee) [2021] AATA 3557 (23 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1704030
COUNTRY OF REFERENCE:                   Albania
MEMBER:Paul Windsor
DATE:23 July 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(aa) of the Migration Act.

Statement made on 23 July 2021 at 10:55 am
CATCHWORDS
REFUGEE – Protection Visa – Albania – blood feud – death threats – significant harm from members of a rival family – mental health issues – relocation not reasonable –state protection not available – complementary protection criterion – decision under review remitted

LEGISLATION
Migration Act 1958, ss 36, 65, 91, 499
Migration Regulations 1994, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 22 February 2017 to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Albania, applied for the visa on 25 September 2014. A summary of relevant applicable law is at Attachment A.
In his Protection visa application the applicant indicated he was born on [date] in [Village 1] in the Shkoder district of Albania. He indicated he is of the Geg Ethnicity, the Catholic faith and has never married. He indicated he departed Albania legally on [date] May 2013 and arrived in Australia on [date] May 2013, entering on a student visa.[1]
[1] See Departmental file [deleted].
In his protection visa application the applicant indicated that, while he had not been harmed while in Albania, in Australia he received information from his father that a blood feud had started because his cousin killed a member of the [Name 1] family, and he should not return to Albania. He fears he will be kidnapped, tortured or killed by the people involved in the feud if he returns to Albania.
The Delegate refused to grant the visa finding the applicant’s evidence to be unreliable and his claim to fear serious or significant harm not credible or genuine.
The applicant applied to the Tribunal for review of this decision on 7 March 2017. He provided the Tribunal with a copy of the delegate’s decision record.[2]
[2] See the Tribunal file.
The applicant appeared before the Tribunal on 10 March 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Albanian and English languages.
The applicant’s was represented by his Registered Migration Agent. The representative attended the hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
Summary of claims
The applicant provided an undated statement with the application. Additional matters relevant to his claims for protection raised in this statement are summarised as follows:
·His family (parents, elder sister and younger brother) live in [Village 1] village in Albania, except his sister who is married and lives [overseas].
·He decided to study [abroad] because he thought if he had [a] qualification it would be easier for him to get a good job [in] Albania.
·He started his [course] in Australia on [date] June 2013 and finished on [date] February 2014. As he was not satisfied with [course] he achieved he decided to undertake a further [course]. He did not know, however, that he had a ‘no further stay condition’ (condition 8534) on his visa and therefore had to leave Australia on [date] April 2014.
·On 8 April 2014 his father telephoned him to advise that his cousin, [Mr A], had killed [Mr B] and wounded [Mr C]. His father told him not to come back to Albania as a blood feud has started and the injured persons will take revenge according to the Kanun of Lek Dukagjini, placing his life at risk. They will kill every person of his family and his cousin’s family and he will be expected to take revenge and kill everyone from the [Name 1] family, which he does not want to do. They can kill him directly or indirectly, by paying a killer. He is also afraid they will take out a contract to have him kidnapped and held for ransom or humiliate and degrade him.
·His cousin’s father is out of Albania and will not return because of fear. His aunt and two female cousins remaining in Albania are now not able to leave their house out of fear. The families are seen as one and his family also cannot leave the house for fear of being killed.
·His father has tried to resolve the feud by contacting [organisations]. They have tried to speak with the [Name 1] family but have not been able to resolve the feud.
·The Albanian state and police are not able to stop this phenomenon.
Also included with the application was:
·A copy of a news article (and English language translation), published by [a] news agency on [date] April 2014, detailing the murder of [Mr B] and wounding of [Mr C] by [Mr A] on [date] April 2014.
·A copy of a ‘certificate’ (and English language translation), purportedly from [an official] of [local] Municipality, dated [date] August 2014, certifying that a conflict started between the [Name 2] and [Name 1] families on [date] April 2014 and that attempts to resolve the despite have failed, because members of the [Name 1] family refuse to reconcile as they ‘claim to avenge their blood by intending to kill a person of the [Name 2] family’.
·A copy of a ‘certificate’ (and English language translation), purportedly from [a named person] of the Catholic Church in [location], [dated] August 2014, in similar terms.
·A ‘Declaration’ by the applicant’s father, [Mr D], dated 21 July 2014, indicating that he informed his son of the claimed incident on [date] April 2014. He indicates that he has demanded help from the police, because some people said their ‘rival’ were coming around their house, but the police did not defend them because they are corrupted and do not ‘have such force’ to defend people’s lives. He also comments that they are ‘isolated’ to safeguard themselves from the revenge of the [Name 1] family.
·A further, undated, statement from the applicant indicating that, while his residence in Australia is difficult, his father has asked him not to return to Albania because his life would be at risk there, where his parents, brother and relative suffer the ‘threatening of the damaged relative’.
The representative provided a pre-hearing submission on 5 March 2021.[3] This included comment by the applicant in response to the delegate’s findings as well as supporting documents (including further copies of documents already provided to the Department). Additional documents provided included:
·A letter (and English translation) entitled ‘PRAYER THANKS’, dated 12 February 2020, from the applicant’s parents.
·A copy of an ‘express response’ from the Department’s Country of Origin Information Service Section (COISS) (which also appears on the Departmental file) regarding reports of the death of [Mr B]. The response indicates that five reports from different sources were located in Albanian news sites regarding the incident.
·Updated translation (dated 4 March 2021) of the ‘certificate’, purportedly from [an official] of [local] Municipality.
·Copies of various articles regarding Albanian blood feuds.
·Link to a [social media] video regarding ‘Ancient blood feuds’ (this link did not work).
·Reference to a documentary entitled [Title], which the representative stated was regarding the ‘[a relative’s] family.
[3] See the Tribunal file.
Relevant additional matters raised by the applicant are summarised as follows:
- His student visa application was handled by a representative in Albania. He had no idea that condition 8534 (no further stay) was attached to the visa and the representative gave him the impression he could apply for a further student visa on-shore if he wished. He engaged another representative in Australia to do this, but the application was found to be invalid. The representative comments that the applicant having changed his mind after arrival into Australia should not be considered as telling a falsehood in the original application.
·The family in the documentary provided are relatives of the applicant.
·The commentary in the COISS express response contains an error in that [Mr B] was killed by the applicant’s cousin, [Mr A], not by [Mr C] (who was also stabbed by [Mr A]).
·The translation provided to the Department of the certificate [contains] errors. A further (NAATI) translation has been provided.
·The delegate has not considered the time difference between Albania and Australia. The applicant became aware of the blood feud when he received the call from his father on [date] April 2014 (Australian time) following the killing and wounding of the [Name 1] brothers.
·The applicant does not know the date of release of [Mr A].
·His cousin’s father was already outside of Albania at the time of the incident.
·The nature of blood feuds has changed and reports indicate female family members can now be attacked (at variance with the original law of Kanun) and criminals now are sometimes contracted to do the killing.
·The delegate’s allegations in relation to the plane ticket (that the applicant did not intend to return to Albania on [date] April 2014 and bought a high price ticket, which the delegate considers would have been fully refundable, to show the Department, then obtained a refund before [date] April 2014) are unfounded. The applicant was scheduled to depart on [date] April 2014, before he received the call from his father on [date] April 2014. (The Tribunal notes that this ‘view’ formed by the delegate was speculative rather than based on any conclusive evidence).
·The applicant will provide to the Tribunal the originals of the copies of documents provided to the Department, which were documents provided to him by his father.
·His father contacted bodies of standing in his community to mediate a resolution with the [Name 1] family. He is not obligated to contact or use large NGOs. NGO’s who claim to be mediators in this field have been seen as having provided fraudulent certificates with respect to mediation attempts.
Relevant additional matters raised by the applicant’s parents are summarised as follows:
·[Mr A] was sentenced to [number of years] imprisonment.
·They as a family are isolated at their house. They asked for help from [organisations] to reconcile the two families, but the [Name 1] family did not accept this.
·Their younger son mostly stays in the neighbouring country of [Country 1] with his friends because of fear of the blood feud.
·They earn a little income from their livestock but rely on help from brothers and their daughter who live overseas.
On 10 March 2021 the representative forwarded a copy of a psychological review dated 7 March 2021.[4] The psychologist indicates that the applicant was referred to him by the applicant’s then representative on 13 June 2014. The psychologist indicates that the applicant was prescribed the anti-depressant [Medication 1] by his family doctor in August 2014, as he developed ‘fears, critical stress, anxiety attacks and episodes of depressed mood’ because of ‘the death threats’. He indicates that he diagnosed the applicant with ‘Adjustment Disorder with Mixed Anxiety and Depressed Mood’ and was also of the opinion that the applicant would develop PTSD should he fail in his application for a protection visa (without expanding on the basis for this opinion). He indicated he provided nine counselling sessions for the applicant from October 2014 to February 2016. He indicated he reviewed the applicant’s mental state in February 2017 and found he was still suffering from chronic stress problems and recommended further counselling, but the applicant could not afford to undertake this (because he does not have work rights).
[4] See the Tribunal file.
The psychologist indicated that, following a one-hour clinical interview with the applicant in March 2021, he administered the Depression Anxiety Stress Scale (DASS) instrument (a 42 or 21-item self-report instrument ‘designed to measure the three related negative emotional states of depression, anxiety and stress’). The psychologist indicates that he is of the opinion that the applicant meets the criteria of ‘Other Specified Trauma-and Stressor-Related Disorder and ‘Major Depressive Disorder, Severe with Recurrent Episodes’, as per relevant diagnostic criteria (DSM-V). The psychologist opines that ‘the fear of persecution based on death threats from the [Name 1] Family forms the foundation of the trauma disorder I currently diagnosed him with’ and comments that should the applicant’s appeal at the AAT fail, ‘he will struggle with strong PTSD symptoms based on vicarious trauma as well as suicidal ideation which are indicative of a negative prognosis’. He recommends further counselling and review by his GP of the applicant’s drug therapy.
At the hearing the applicant indicated that he is related to [Mr A] because his father and [Mr A]’s father are cousins. He said they live [not far] away by car. He indicated that there are three other families who are part of the extended [Name 2] family who live close by. He indicated he did not associate with [Mr A] when he was in Albania because he is much older than [Mr A], but said he associated with [Mr A]’s father. The Tribunal asked the applicant if he could provide documentary evidence of his family’s relationship with [Mr A] given [Name 2] seems to be a relatively common name in Albania. He said he was not sure how he could do this but would try.
The applicant indicated he did not know the details of how the murder incident occurred as he was in Australia at the time, but understands his cousin was passing by the bar where [Mr B] and [Mr C] were, when a dispute flared. The Tribunal asked the applicant if he could provide it with court documents relating to the matter. He undertook to attempt to do this.
The Tribunal queried the applicant how this matter could be labelled a blood feud when there have been no other incidents in the seven years that have passed since the murder of [Mr B] in April 2014. The applicant said it is because a lot of the members of the [Name 2] family have left and those that remain are self-isolating. When queried he indicated the remaining family members subsist by living off their land and through support provided by family members living overseas.
When queried regarding assistance provided by the police, the applicant said his father sough police assistance but had not received any secure support. He added that the police in Albania are very corrupt and do not have the means to protect the family. He commented that his father called the police when he heard ‘rivals’ were seen around the house.
When discussing the apparent confusion in the supporting statements regarding whether a gun or knife was used in the incident, the applicant comment that may be due to a mistake in the translation. The interpreter confirmed this was the case and that the weapon used was a knife.
The Tribunal discussed with the applicant apparent inconsistencies in the evidence provided regarding what the Kanun dictates should happen in response to the murder – whether a single male member of the rival family should be killed or whether the whole family, including women and children can be killed. The applicant commented that the ‘taking of blood’ relates to a single male only, but the entire family needs to be self-isolating. He added that, unfortunately, it is the case now that Kanun law is not being respected and women are at risk.
The Tribunal queried the applicant why the letters provided from the [official] and the church indicate he is self-isolating when he is in Australia, and asked why he was singled out in these letters as being particularly at risk. He indicated he did not know the reason for that but commented he understands that the letters are stating that if he returns to Albania he will be at risk.
The Tribunal queried the applicant why he had not provided any information updating the situation given the passage of time since the incident. The applicant commented that the [Name 1] family do not accept reconciliation so there is nothing to update.
The Tribunal queried the applicant that his father indicated that his brother [Mr E] has been spending time in [Country 1], rather than self-isolating. The applicant commented that they live very close to the [border]. He said [Mr E] takes a risk going to [Country 1], travels by backroads at night and goes there ‘in a illegal manner’. He added that [Mr E] cannot live and work in [Country 1], but goes there ‘for a break’.
The Tribunal observed that it seems an extraordinary coincidence that the murder incident occurred just a day or two before he was due to return to Albania. The applicant agreed but commented that it is proven that the incident happened in the afternoon of [date] April 2014 in Albania. He said his father called him immediately (at [time] on [date] April Australian time) to inform him of the incident and asked him to try to stay in Australia because he knew he was scheduled to leave Australia on [date] April.
The Tribunal asked the applicant why he then delayed for 5 months, becoming an unlawful non-citizen, before he made a protection visa application. He said he was very worried and stressed and did not know what to do. He said it was after he spoke to people that they advised him what he should do.
Noting that no psychological or medical reports had been provided to the Department or the Tribunal (prior to the day of the hearing), the Tribunal asked the applicant when he first saw a psychologist. He indicated it was in around 2014 and commented that the psychologist has helped him a lot. Noting there is nothing on the Departmental file about this, the Tribunal asked why he had not submitted anything to the Department or the Tribunal earlier. He commented that he does not remember whether anything had been submitted previously. The applicant confirmed that he was taking medication which could have been [Medication 1] but indicated he stopped taking it because he had an allergic reaction to the medication. He indicated he is not taking any medication at the moment.
The Tribunal discussed with the applicant country information from the UK Home Office regarding blood feuds in Albania.[5] The Tribunal observed that, inter alia, the report indicates attestation letters from Albanian non-governmental organisations should not in general be regarded as reliable evidence of the existence of a feud (because of the high incidence of fraud in the production of such letters); that, unless factual, prompt and consistent, press reports will add little or no evidential weight; that while blood feuds still occur in Albania, particularly in the north of the country, including Shkoder region (where police indicated there were 68 confined families registered with them) the British Embassy reported that blood feud is a phenomenon in sharp decline in Albania; and that some sources have indicated that increased police effectiveness had contributed to the decline in the phenomenon.
[5] UK Home Office, Country Policy and Information Note, Albania: Blood Feuds, Version 4.0, February 2020.

The applicant commented that he came to Australia as a student and not to seek asylum. He said he knows there are some false documents but is not aware of these or the organisations that produce them.
The representative commented that the US Department of State’s 2019 Human Rights Report for Albania highlights the high level of corruption in the Albanian Government (the reports states that officials frequently engaged in corrupt practices with impunity, corruption was pervasive in all branches of government and police corruption remained a problem).[6] He indicated he could not see how the UK government could accept that the Albanian authorities were reliable partners in relation to this matter.
[6] Country Reports on Human Rights Practices for 2019, Albania 2019 Human Rights Report, United States Department of State, pages 15-17.
The representative indicated he had referred the Tribunal to a 2017 video of a documentary concerning the daughters of the family who are self-isolating. He commented this, along with other articles he has provided, indicates that Kanun law has resurfaced in the period after the fall of the communist government in Albania and there has been a resurgence in blood feud cases.
The representative commented that, contrary to the delegate’s views, the applicant had purchased a ticket to travel to Albania that was non-refundable and has never obtained a refund. He also commented that the delegate seemed to adopt a damned if you do, damned if you don’t approach to documents regarding reconciliation, stating she expected documentation would have been provided from the Committee of Nationwide Reconciliation (CNR) but also commenting that if such documentation had been provided, the weight given to it would be affected by the advice indicating there is widespread fabrication of documents to support claims of blood feuds.
In relation to the 5-month delay in making the protection visa application, the representative indicated that the applicant had been treated badly by his previous representatives, commenting that the person who assisted him with his (invalid) further student visa application in Australia was not a registered migration agent and made the application without understanding the impact of the no further stay condition on his existing student visa.
In relation to relocation, the representative commented that this would not be possible in the applicant’s case both because information regarding his location in Albania could be obtained by bribing officials and through the engagement of criminal elements and because it would not be reasonable, in his particular circumstances, to expect him to relocate.
A post hearing submission and supporting documents was received from the representative on 10 May 2021.[7] The supporting documents comprised:
·A document confirming the identity and date of birth of [Mr A].
·Evidence of the relationship between the applicant’s father, [Mr D] and [Mr F], the father of [Mr A].
·Court documents relating to the sentencing of [Mr A].
·A further statement (‘Attestation’) from the church, dated 13 March 2021, indicating that attempts at reconciling the families have failed.
[7] See the Tribunal file.
In his post hearing submission the representative, inter alia, made arguments on the limitations of country information, including that it can be inconclusive and is often too generic. He also drew the Tribunal’s attention to information on blood feuds sourced from relevant European Union Guidelines which indicate that ‘where there is an active blood feud affecting an individual and self-confinement is the only option, that person will normally qualify for Refugee status.’ In this regard, the Tribunal notes that the UK Home Office Country Policy and Information Note referred to above also states (at 2.4.8) that ‘The Upper Tribunal in EH found that where there is an active feud affecting an individual and self-confinement is the only option, that person will normally qualify for Refugee status (paragraph 74 (e))’.[8]
[8] UK Home Office, Country Policy and Information Note, Albania: Blood Feuds, Version 4.0, February 2020.
On 8 June 2021 the representative made a further submission clarifying that the applicant’s father, [Mr D] and [Mr F], the father of the convicted murderer ([Mr A]), are second cousins.[9] He comments that [Mr F] successfully obtained refuge in the UK and eventually was able to bring his family to the UK, and indicates that the applicant advises that [Mr F] is working on having his son go to another country on his release from prison. The representative clarifies that [Mr F] and his family were the subject of the documentary ([Titled) that was referred to at the hearing and in the previous submission.
[9] See the Tribunal file.
Findings and reasons
Applicant’s identity
On the basis of the copy of the applicant’s Albanian passport provided to the Department,[10] and noting the delegate’s findings in this matter, the Tribunal accepts that the applicant is a citizen of Albania and that his identity is as he claims it to be. Accordingly, the Tribunal finds that Albania is his country of nationality for Refugees Convention purposes and is his ‘receiving country’ for complementary protection purposes.
Issues
[10] See Departmental file [deleted].
The issues in this review are whether the applicant faces a real chance of suffering treatment amounting to persecution involving serious harm for one or more of the reasons enumerated in the Refugees Convention definition if he was to return to Albania and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Albania, there is a real risk he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Credibility
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
The Tribunal found that the applicant generally gave brief answers at hearing. In considering his responses the Tribunal has taken into account the report of the psychologist, including his comments regarding the applicant being an introvert and suffering depressed mood and low self-confidence, as well as his findings on the applicant’s mental health. As detailed below, in reaching its findings the Tribunal has given significant weight to the documentary evidence provided regarding the murder incident, the outcome of the trial of [Mr A], and the circumstances of the applicant’s relative [Mr F] and his family.
Assessment of claims
In relation to the delegate’s concerns that the applicant was advised and acknowledged during processing of his student visa that a ‘no further stay’ condition would be applied to the visa, having reviewed the student visa file the Tribunal notes that, consistent with the applicant’s evidence, he engaged an [agent] when he sought this visa and all correspondence regarding the visa application was to the [specified] email address. While email responses, including the response of 3 April 2013 which indicated he was ‘fine’ with the ‘no further stay 8534 condition’ were sent under the applicant’s name, they were sent from the above [email address]. The Tribunal considers it is plausible, therefore, that these were sent by the applicant’s agent (in the applicant’s name) rather than the applicant personally. The Tribunal also notes that the Department appears to have provided misleading information regarding the impact of condition 8534, as the Visa Grant Notice of 23 April 2013 indicates that ‘The holder will not be entitled to be granted a substantive visa, other than (a) protection visa; or (b) a student visa…while the holder remains in Australia.’[11] The Tribunal considers, therefore, that it is plausible the applicant either did not know about or did not understand the implications of the condition 8534 on his student visa. Accordingly, the Tribunal does not consider this matter is relevant to the applicant’s overall credibility.
[11] See file 120261, folios 66 and 69-70.
Considering the relevant press reports located by the Department’s Country of Original Information Services Section on behalf of the delegate and the record of the outcome of the trial provided by the applicant, the Tribunal accepts that [Mr A] stabbed and killed [Mr B] and stabbed and wounded [Mr C] in [in] the Shkoder district of Albania on [date] April 2014. The Tribunal finds that the court document provided indicates that on [date] December 2014, at the [District Court], [Mr A] was convicted of ‘Intentional Homicide’ in relation to the death of [Mr B] and ‘Grievous bodily harm with intent’ in relation to the stabbing of [Mr C], and sentenced to [years] of imprisonment (after reductions).
Considering the applicant’s consistent evidence and the supporting documentation provided to the Tribunal in this regard, including the [television] documentary [Title redacted] referred to the representative’s submissions (which focuses on the circumstances of [Mr A]’s family following the murder), the Tribunal accepts that [Mr A]’s father, [Mr F], and the applicant’s father, [Mr D], are blood relations ‘in the second generation’ – that is, they are cousins.
While, as observed by the Tribunal at the hearing, the timing of this incident – a day or two before the applicant was scheduled to return to Albania – is quite extraordinary, having carefully considered all the available evidence, the Tribunal accepts that the death of [Mr B] at the hands or [Mr A] has started a blood feud, in that the [Name 1] family wish to avenge the killing of [Mr B]. In reaching this conclusion, the Tribunal was very mindful of the country information indicating that there has been something of an industry in Albania in relation to the creation of documentation to support fraudulent claims for asylum by Albanians abroad, on the basis of being victims of blood feud. This is made clear in the relevant UK Home Office Country Policy and Information Note. However, while indicating that there are some NGOs and other individuals with a vested interest in inflating the claimed prevalence of blood feuds, and that blood feud is a phenomenon in sharp decline in Albania, the report acknowledges that known cases of blood feud persist, and that nearly all of these are in the north of Albania, including Shkoder district. The report notes that in March 2017 the Regional Police Directorate in Shkoder told a visiting fact-finding mission from Cedoca, the Documentation and Research Department of the Belgian Office of the Commissioner General for Refugees and Stateless Persons, that in 2016 there were 68 confined (due to blood feud) families registered in the Shkoder region, that some of these had gone abroad, and there were another 122 families in the region who were in blood feud but were not confined in the Shkoder region.
Because of the known high prevalence of fraud in relation to documentation attesting to the existence of a blood feud in Albania, and considering some of the features of the supporting documents provided by the applicant, purportedly from the local [official] and a representative of the catholic church (the similar wording of the two statements, focus on the applicant as being particularly at risk, and comments that he was confined along with his family) the Tribunal initially had little confidence in the authenticity of these documents. The Tribunal found that the most compelling piece of evidence put forward was the television documentary [Title redacted], produced by [a named journalist] in June 2017, because it is clearly about the family of [Mr A]. The story focuses on the difficulties faced by [Mr A]’s sisters, [Ms G] and [Ms H] and is largely told through [Ms H]’s eyes. It includes footage of [Ms H], [Ms G] and their [mother] confined at their rural home, along with their elderly grandparents. The documentary makes clear that the girls have not been able to attend school for the past three years because of concerns that they might be kidnapped. Footage is included of a mediator visiting the family and providing news that the [Name 1] family are not willing to reconcile. Footage is also included of the girls’ father, [Mr F], in [Country 2], where he is awaiting a court date regarding his application for asylum. He calls the family to provide updates regarding the progress of his application. The documentary records the moment when he finds out his application for asylum in [Country 2] has been successful. He emails a copy of the relevant document to [Ms G] as he is speaking with the family, who reads it from her phone and translates the outcome for other family members.[12] The Tribunal found the information in the documentary was consistent with the applicant’s claims and other supporting documents he has provided, including details of the composition of [Mr F]’s family and the claim that he has been successful in gaining asylum in [Country 2] and that his family have joined him there.
[12] [Source information deleted]
As the Tribunal accepts that there is a blood feud in existence, initiated by the [Name 1] family following the death of their son at the hands of [Mr A], and the [Name 1] family are not prepared to reconcile, the Tribunal accepts that members of the extended [Name 2] family in the Shkoder district are either self-confining or have left Albania. The Tribunal has considered the evidence that the applicant’s younger brother, [Mr E], takes advantage of the close proximity of the border to ‘secretly’ enter [Country 1] at night and stay with ‘friend’s there so that he can have a (mental health) break from self-confinement. The Tribunal accepts the applicant’s evidence that [Mr E] takes risks in doing this and the applicant would not be prepared to do this if he were in the same circumstances. The Tribunal also finds that [Mr E] doing this is indicative of the fact that the family cannot live a normal life in Albania where self-confinement due to their fear of serious or significant harm from members of the [Name 1] family precludes them working, undertaking education or socialising outside of their home.
Accordingly, the Tribunal finds that the applicant would face a real risk of serious or significant harm, including being killed, should he return to his home region in Albania.
The Tribunal notes that s.91S of the Act qualifies the circumstances in which membership of a particular family can be relied upon as a particular social group for the purposes of the Refugees Convention definition. S.91S requires that in determining whether a person (the first person) has a well-founded fear of persecution for the reason of membership of a particular social group that consists of their family, the decision-maker must:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not for a refugee reason;
(b) disregard any fear of persecution, or any persecution, that:
(i) the first person has ever experienced; or
(ii) any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in (a) had never existed.
As a result of this provision, a person who is pursued because he or she is a relative of a person who is targeted for a non-refugee reason will not have a well-founded fear of persecution for this reason.[13] The Tribunal finds that in this case, there is nothing to indicate or suggest that the dispute that arose between [Mr A] and [Mr B] and [Mr C], which resulted in the death of [Mr B] and the wounding of [Mr C], was in any way related to one or more of the five Refugee Convention grounds. As the applicant claims to be a target of the [Name 1] family because they are seeking revenge for the murder of their family member, for which there were was no Refugees Convention basis, the applicant’s claimed fear of persecution does not relate to a Refugees Convention ground.
[13] Such as criminal pursuit for repayment of debts as in MIMA v Sarrazola (No 2) (2001) 107 FCR 184, or revenge for a murder as in the Albanian ‘blood feud’ cases such as SCAL v MIMIA [2003] FCAFC 301.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
Complementary protection criterion
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).
In considering whether there is a real risk that the applicant will suffer significant harm, as a necessary and foreseeable consequence of being removed from Australia to Albania, the Tribunal has noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[14]
[14] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].
The Tribunal notes that ‘significant harm’ for the purposes of complementary protection is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out them; or they will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

In this case, as noted above, the Tribunal considers that the applicant would face a real risk of significant harm from members of the [Name 1] family, should he be returned to Albania. The Tribunal is satisfied that the harm involves arbitrary deprivation of life and/or severe physical or mental pain or suffering and/or extreme humiliation, which is intentionally inflicted on the applicant, should he return to his home region in Albania.
The Tribunal has considered if the applicant could obtain from the Albanian authorities protection such that there would not be a real risk that he would suffer significant harm as referred to under s.36(2B)(b). The Tribunal notes that in MZYYL, the Court expressly rejected that s.36(2B)(b) requires only that the receiving country have an effective legal system for detection, prosecution and punishment, or a system that meets ‘international standards’.[15] Instead, the provision requires consideration of the source and nature of the harm faced, the nature and degree of protection able to be afforded by the authorities from the specific harm faced, whether that protection could be obtained, and whether, upon obtaining that protection there would still be a real risk of significant harm.[16]
[15] MIAC v MZYYL (2012) 207 FCR 211 at [36]–[37].
[16] ABAR15 v MIBP (No 2) [2016] FCA 721 at [60]–[61].
The Complementary Protection Guidelines also state that where the State can only realistically provide reasonably effective protection measures, decision makers must still assess whether such measures reduce the risk of harm to something less than a real risk, and that in some cases this may require the decision maker to be satisfied that the receiving country would take specific measures to protect a person.[17]
[17] Department of Home Affairs, Complementary Protection Guidelines, section 3.6.2, as re-issued 29 February 2020.
The Tribunal considers that the fact that there is a significant number of families self-confining in the Shkoder region indicates that the Albanian authorities are not able to offer protection to families caught up in blood feud that is sufficient to remove the real risk of significant harm that they face. In this regard, the Tribunal has also taken into consideration advice in the 2019 US Department of State’s Human Rights Report for Albania regarding the effectiveness of the police in Albania. The report comments that police corruption remained a problem, with an increased number of written complaints being received regarding alleged failure to act, arbitrary action, abuse of office, or a violation of standard operating procedures. The report states that police did not always enforce the law equitably, with personal associations, political or criminal connections, deficient infrastructure, lack of equipment, and inadequate supervision often influencing law enforcement. It was also noted that poor leadership contributed to continued corruption and unprofessional behaviour. In relation to public officials, the report comments that while the law provides criminal penalties for corruption, and the law also prohibits individuals with criminal convictions from serving as mayors, parliamentarians, or in government or state positions, the government did not implement the law effectively. It states that officials frequently engaged in corrupt practices with impunity and corruption was pervasive in all branches of government.[18] Considering the relevant country information, the Tribunal finds it cannot be satisfied that the general measure of state protection in Albania is sufficient in the applicant’s particular circumstances to remove the real risk of significant harm that he faces. The Tribunal finds that, for the purposes of s.36(2B)(b) of the Act, the applicant could not obtain, from an authority in Albania, protection such that there would not be a real risk that he will suffer significant harm from members of the [Name 1] family.
[18] Country Reports on Human Rights Practices for 2019, Albania 2019 Human Rights Report, United States Department of State, pages 15-16.
The Tribunal finds, therefore, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Albania, there is a real risk that he will suffer significant harm.
With respect to relocation, the Tribunal considers it is plausible members of the [Name 1] family, with the assistance of criminal elements and/or corrupt officials, could locate the applicant anywhere in Albania, a relatively small country with a population of less than 2.9 million people.[19] The Tribunal also finds that it is not reasonable, in the sense of practicable, for the applicant to relocate within Albania, given his mental health issues and lack of family support outside the Shkoder region. Accordingly, the Tribunal finds that it would not be possible for the applicant to relocate to an area of the country where there would not be a real risk that he will suffer significant harm, as required by s.36(2B)(a) of the Act.
[19] Albanian population, worldometer, >
The Tribunal is satisfied that the significant harm the applicant faces is one faced by him personally and not faced by the population of the country generally, as required by s.36(2B)(c) of the Act.
Therefore, the Tribunal finds that the applicant is not precluded by the operation of s.36(2B)(a), (b) and (c) of the Act.
Noting the applicant indicated that Albanian nationals are able to enter the European Union for periods of up to 3 months and also that his brother has been secretly and illegally travelling to neighbouring [Country 1], the Tribunal also considered whether the third country protection provisions in s.36(3) of the Act might apply in his case. The Tribunal finds that while the applicant, as a citizen of Albania, has a right to enter certain European Union countries without a visa,[20] and can enter [Country 1] without a visa,[21] this is only for the purpose of visiting, for stays of up to 90 days, and does not allow the applicant to ‘reside’ in those countries (either temporarily or permanently).
[20] Albanians, Bosnians rejoice at visa-free travel, Reuters, December 17 2010 [Information deleted]

The Tribunal is satisfied, therefore, that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

DECISION

The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(aa) of the Migration Act.

Paul Windsor
Member

ATTACHMENT A Relevant law

The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

Refugee criterion

Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

Complementary protection criterion

If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

Member of the same family unit

Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include spouse or de facto partner and dependent children.

Section 499 Ministerial Direction

In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

[2021] AATA 3557

23 July 2021

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